lisa ells margot mendelsonrbgg.com/wp-content/uploads/dkt-1-complaint-for... · judgment pursuant...

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[2886036-19] COMPLAINT FOR VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT, ETC.

LISA ELLS – 243657 MARGOT MENDELSON – 268583 MICHAEL S. NUNEZ – 280535 ROSEN BIEN GALVAN & GRUNFELD LLP 50 Fremont Street, 19

th Floor

San Francisco, California 94105-2235 Telephone: (415) 433-6830 Facsimile: (415) 433-7104 Email: [email protected] [email protected] [email protected] ROBERT RUBIN – 085084 LAW OFFICE OF ROBERT RUBIN 131 Steuart Street, Suite 300 San Francisco, California 94105-1241 Telephone: (415) 625-8454 Email: [email protected] Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

THE CALIFORNIA COUNCIL OF THE BLIND, a California nonprofit corporation, LYNDA JOHNSON, and JAMES GUMP,

Plaintiffs,

v. COUNTY OF SAN MATEO; MARK CHURCH, in his official capacity as Chief Elections Officer and Assessor-County Clerk-Recorder for the County of San Mateo; THE STATE OF CALIFORNIA; EDMUND G. BROWN, in his official capacity as Governor of California; and ALEX PADILLA, in his official capacity as Secretary of State of California,

Defendants.

Case No. ______________ COMPLAINT FOR VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT, 42 U.S.C. § 12101, et. seq., SECTION 504 OF THE REHABILITATION ACT, 29 U.S.C. § 794, AND CALIFORNIA GOVERNMENT CODE § 11135, et seq.

Case 3:15-cv-05784 Document 1 Filed 12/17/15 of 21

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[2886036-19] 1 COMPLAINT FOR VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT, ETC.

INTRODUCTION

1. Plaintiffs THE CALIFORNIA COUNCIL OF THE BLIND (“CCB”),

LYNDA JOHNSON, and JAMES GUMP challenge Defendants’ unlawful and

discriminatory exclusion of blind and visually impaired voters from the County of San

Mateo’s absentee voting program. Defendant County of San Mateo (“the County”)

administers an absentee voting program to which blind and visually impaired voters are

denied equal access. Despite the availability of reliable and secure technologies that would

enable blind and visually impaired voters to cast absentee ballots in a private and

independent manner, the County has failed to provide any alternative to paper ballots for

absentee voting. As a result, blind and visually impaired voters must rely on the assistance

of others to read and mark their absentee ballots, thereby sacrificing the confidentiality of

their vote, or forego their right to vote by absentee ballot altogether.

2. In 2014, the County erected additional barriers to electoral participation

among blind and visually impaired voters by enacting an All-Mailed Ballot Election Pilot

Program. The program dramatically expands absentee voting while authorizing vast

reductions in the number of physical polling sites in the County. The County touts the

expanded absentee voting program as beneficial to its voters, and champions substantial

cost savings and increased electoral participation associated with the pilot program. But it

has utterly failed to extend the benefits of this program to blind and visually impaired

voters. In spite of its increasing reliance on absentee voting, the County has taken no

actions to ensure that blind and visually impaired voters can privately and independently

read and mark absentee ballots, as they can in several other states.

3. Defendants State of California, California Secretary of State Alex Padilla

(“the Secretary”), and Governor Edmund G. Brown (“Governor Brown”) have approved,

enacted, and/or participated in the County’s discriminatory absentee voting program. The

State of California extended absentee voting rights to all registered voters in California, but

failed to address the exclusion of blind and visually impaired voters from the

program. Governor Brown exacerbated this discrimination by signing legislation


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approving the County’s All-Mailed Ballot Election Pilot Program in 2014. The Secretary,

who serves as the State of California’s chief elections officer and oversees elections across

the state, has failed to certify an accessible absentee ballot marking system for use in the

County, thereby impeding the implementation of a feasible remedy to this ongoing

discrimination. The Secretary also has aided and perpetuated discrimination against blind

and visually impaired voters in San Mateo County by facilitating and substantially

assisting in the administration of County elections.

4. By excluding blind and visually impaired voters from the County’s absentee

voting program, Defendants discriminate on the basis of disability in violation of Title II of

the Americans with Disabilities Act (“ADA”) and its accompanying regulations, Section

504 of the Rehabilitation Act of 1973 (“Rehabilitation Act”) and its accompanying

regulations, and California Government Code § 11135, et seq. and its accompany

regulations.

5. Plaintiffs attempted to resolve this matter without a lawsuit, but were unable

to secure a commitment from Defendants to modify their policies, procedures, and

practices in a manner sufficient to ensure that blind and visually impaired voters will have

full and equal access to the County’s absentee voting program.

JURISDICTION AND VENUE

6. This is an action for declaratory and injunctive relief pursuant to Title II of

the ADA, 42 U.S.C. §§ 12101-12213, and Section 504 of the Rehabilitation Act, 29 U.S.C.

§ 794, as well as California Government Code § 11135, et seq.

7. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331

and 1343 for the federal law claims, and it has supplemental jurisdiction over the state law

claim pursuant to 28 U.S.C. § 1367. This Court has jurisdiction to issue a declaratory

judgment pursuant to 28 U.S.C. §§ 2201 and 2202.

8. Venue is proper in the Northern District of California pursuant to 28 U.S.C.

§ 1391(b) because: (i) Defendants County of San Mateo and Mark Church, Chief Elections

Officer and Assessor-County Clerk-Recorder for San Mateo County, are located within the


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District and (ii) the acts and omissions giving rise to this claim have occurred within the

District.

THE PARTIES

9. Plaintiff CCB is a nonprofit organization incorporated in California whose

membership consists of blind and visually impaired individuals residing in California. It is

the California affiliate of the American Council of the Blind. CCB’s mission is to gain full

independence and equality of opportunity for all blind and visually impaired Californians.

CCB is committed to promoting the rights, needs, interests, and concerns of all

Californians who are blind or visually impaired, and to providing information and

referrals, technical assistance, and advocacy. For years, CCB has advocated before the

California legislature, the Secretary of State, local elections officials, and in court for

improved access to voting, including absentee voting, for blind and visually impaired

voters in California. CCB has hundreds of members in Northern California, including in

San Mateo County. CCB sues on behalf of its members in San Mateo County, including

Lynda Johnson, who are unable to read and mark absentee ballots privately and

independently.

10. Plaintiff LYNDA JOHNSON is an individual residing in San Mateo,

California and a member of CCB. Ms. Johnson is legally blind and registered to vote in

San Mateo County. Ms. Johnson is concerned about the privacy of her vote and wishes to

vote independently. Ms. Johnson often uses taxis and ride services to get around the

County. She prefers to vote absentee in order to avoid the expense of traveling to a

physical polling site and the anxiety associated with navigating new and unfamiliar places.

Like other voters, Ms. Johnson values the convenience of voting absentee. Ms. Johnson

would prefer to cast an absentee ballot using her screen reading technology, JAWS for

Windows, which she uses on a daily basis. Although Ms. Johnson hires a reader to assist

with certain tasks, she values the privacy of her vote and does not want to disclose the

nature of her vote to a third party or rely on others to read and mark her ballot for her.

11. Plaintiff JAMES GUMP is an individual residing in Menlo Park, California.


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Mr. Gump is legally blind and is registered to vote in San Mateo County. Mr. Gump has a

guide dog, and he travels using public transportation, demand-responsive transportation

services such as Lyft, and other options. In the November 3, 2015 election, Mr. Gump cast

an absentee ballot with the assistance of another person, who read the text of the ballot to

him and filled out the ballot for him. Mr. Gump prefers to vote absentee to avoid the extra

time, cost, and inconvenience of traveling to and voting at a poll site on election day.

Mr. Gump would prefer to cast a ballot using ZoomText, the combination screen reading

and screen magnification software that he regularly uses to operate his computer.

12. Defendant COUNTY OF SAN MATEO is a political subdivision of the State

of California. Under California law, counties administer public elections within their

jurisdictions, subject to oversight by the Secretary of State. Counties design and provide

their own ballots for elections within their jurisdictions.

13. Defendant MARK CHURCH is the Chief Elections Officer and Assessor-

County Clerk-Recorder for the County of San Mateo (“the Chief Elections Officer”), and

is sued herein in his official capacity. In that role, Mr. Church bears legal responsibility

for conducting all public elections in San Mateo County, including administering the

County’s absentee voting program and establishing and providing places for voting within

the County.

14. Defendant STATE OF CALIFORNIA is a governmental entity. The State of

California holds elections for the selection of public officials. The State of California

offers absentee voting as an option for all registered voters in the state.

15. Defendant EDMUND G. BROWN, JR. is the Governor of the State of

California, and is sued herein in his official capacity. On August 15, 2014, Governor

Brown signed into law Assembly Bill 2028, which revised the California Elections Code to

authorize the All-Mailed Ballot Election Pilot Program in San Mateo County. The

legislation expanded absentee voting in the County without addressing the systemic

exclusion of blind and visually impaired voters from the program. The Governor is the

supreme executive power of the State and bears legal responsibility for executing the law.


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16. Defendant ALEX PADILLA is the Secretary of State for the State of

California, and is sued herein in his official capacity. The Secretary of State is the chief

elections officer for the State of California and is charged with overseeing elections

throughout the state. The California Elections Code requires the Secretary to certify or

conditionally approve any voting systems and ballot marking systems prior to use

anywhere in the State of California. The Secretary also bears legal responsibility for

certifying and inspecting all ballot card printers and manufacturers contracted by counties

and other jurisdictions. The Secretary significantly assists the County in planning,

designing, and conducting its public elections.

FACTUAL ALLEGATIONS

17. Any voter in California may choose to vote by casting an absentee ballot

(also known as “Vote by Mail”). Any California voter also may register to become a

permanent absentee voter, whereby a paper absentee ballot is automatically sent to them

each election for voting.

18. Absentee voting is growing significantly in California. According to the

Secretary, 60.52% of the ballots cast in the 2014 general election were cast by absentee

ballot – a dramatic increase since 2000, when only 24.53% of ballots were cast absentee.1

19. In San Mateo County, as in other California jurisdictions, voters who wish to

cast absentee ballots must fill out and submit paper ballots.

20. Paper ballots are not accessible to individuals who are blind or visually

impaired. Blind voters cannot read or mark printed ballots, so they must rely on the

assistance of others if they wish to participate in the absentee voting program. Similarly,

many voters with low vision cannot read or mark absentee ballots independently because

the ballots are printed with small text. In some cases, blind and visually impaired voters

pay money to hire individuals to read and mark their absentee ballots for them, which

1 http://www.sos.ca.gov/elections/historical-absentee/


http://www.sos.ca.gov/elections/historical-absentee/

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means that they must disclose their voting selections and must trust the sighted individual

not to alter their choices. Due to the exclusive use of paper ballots for absentee voting,

blind and visually impaired voters in the County lack the opportunity to cast their absentee

ballots privately and independently, or to independently verify the accuracy of their

absentee ballots.

21. However, Plaintiffs and other blind and visually impaired individuals

routinely use text-to-speech software to read electronic documents and webpages, and to

fill out forms independently. Text-to-speech software, sometimes referred to as screen

reading technology, enables blind and visually impaired persons to access information and

to operate computers by translating visual information and on-screen text into audible

synthesized speech, or into Braille on a portable electronic refreshable braille display.

Plaintiff Gump and other visually impaired individuals operate computers using

accessibility computer software that incorporates both text-to-speech software and screen

magnification features.

22. Jurisdictions across the country have implemented accessible absentee voting

programs that enable blind and visually impaired voters to cast absentee ballots privately

and independently using text-to-speech software. For example, voters in Alaska, Arizona,

Delaware, Maryland, Oregon, and Utah, as well as certain jurisdictions in Washington and

Hawaii, can elect to mark and submit absentee ballots online, often using computerized

systems that are compatible with text-to-speech software used by blind or visually

impaired people. These jurisdictions have extended the benefit of their absentee voting

programs to blind and visually impaired voters using reliable and established technologies.

23. For example, the Oregon-based company Five Cedars Group, Inc. has

developed a ballot marking system that is accessible to blind and visually impaired voters

who use computers with text-to-speech software or combination screen reading and screen

magnification software, and it does not require voters to go to a physical polling site in

order to cast their ballots. Five Cedars Group produces an Alternate Format Ballot

(“AFB”) that blind and visually impaired voters can access at home or anywhere they


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choose using their preferred assistive technologies. Voters receive their ballots over the

internet and can read and mark them using their own text-to-speech software, refreshable

braille displays, or other assistive technologies. Five Cedars Group’s Alternate Format

Ballot is compatible with the text-to-speech software that Plaintiff Johnson uses, and is

compatible with the text-to-speech and screen magnification software that Plaintiff Gump

uses. The AFB also includes a Ballot Summary page that allows voters to review and

confirm their votes. Voters mark and cast their votes without transmitting their vote

choices or any other election data over the Internet or any other third party network.

24. Oregon, where all voting is absentee only, has used the Five Cedars Group’s

AFB since May 2008 without security breaches or other privacy concerns.

25. Nonetheless, despite the availability of technology that would remedy the

County’s ongoing violations of federal and state disability law, Defendants have failed to

extend absentee voting to blind and visually impaired voters in the County.

26. In fact, the County exacerbated the discriminatory denial of access to its

absentee voting program in 2014 by adopting an All-Mailed Ballot Election Pilot Program.

The program greatly expands absentee voting for certain elections and authorizes the

county to conduct elections “wholly by mail,” subject to certain limitations.2

27. The County’s All-Mailed Ballot Election Pilot Program imposes additional

barriers to democratic participation for blind and visually impaired voters by authorizing

vast reductions in the number of physical polling sites, to as few as one per city.

28. Reducing the number of physical polling sites in a jurisdiction

disproportionately impacts blind and visually impaired voters, who consequently face

longer travel times to reach polling sites equipped with accessible voting systems. With

fewer available physical polling sites in the County, blind voters like Ms. Johnson must

travel longer distances to vote via the only accessible method offered by using expensive

2 Cal. Elec. Code § 4001(a).


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ride services or relying on assistance from friends and family.

29. Blind and visually impaired voters face unique challenges at physical poll

sites. Blind and visually impaired voters must devote extra time to travel to and become

oriented to unfamiliar polling places. In addition, access to private and independent voting

for blind voters is often unreliable even at polling places. As exemplified in a recent

lawsuit brought by the California Council of the Blind against the County of Alameda, No.

13-cv-03443-JCS (N.D. Cal.), CCB members across California often find that accessible

voting machines at poll sites are malfunctioning or missing components necessary to use

the machines, or that poll workers do not know how to set up or operate the machines. As

a result, blind voters face significant delays as they wait for poll workers to resolve issues

with accessible voting machines, or they must dictate their voting choices to third parties

who mark ballots for them even at physical polling sites.

30. Mr. Church, on behalf of the County, publicly has touted substantial cost

savings attributable to the All-Mailed Ballot Election program. A message from

Mr. Church on the County’s election website predicts cost savings of approximately 43%,

due to “major reductions in the hiring, training, and support of poll workers, and the testing

and deployment of voting equipment and supplies.”3

31. Mr. Church has described the absentee voting program as a “unique

opportunity” and “benefit” to San Mateo County voters.4

32. Governor Brown has endorsed the use of absentee voting, including by

approving revisions to the California Elections Code designed to expand absentee voting

throughout the State. In particular, Governor Brown signed AB 2028 into law on

August 15, 2014.

3 “Frequently Asked Questions on November 3, 2015 Consolidated Municipal, School and

Special District All-Mailed Ballot Election,” Shape the Future! Vote: Official Election Site

of San Mateo County, https://www.shapethefuture.org/ab2028/faq. 4 “Message from Mark Church, Chief Elections Officer & Assessor-County Recorder-

Clerk,” https://www.shapethefuture.org.


https://www.shapethefuture.org/ab2028/faq

https://www.shapethefuture.org/

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33. Previously, former Governor Arnold Schwarzenegger twice vetoed bills that

would have implemented all-mail ballot election pilot programs, in part on the grounds that

such programs would limit access to voters with disabilities.5

34. The Secretary of State is legally responsible for overseeing elections in the

State of California. California law charges the Secretary with responsibility for designing

and administering the application process for the certification of voting systems and ballot

marking systems. Certification is a process set forth in the California Elections Code by

which the Secretary of State approves voting systems and ballot marking systems for use

in public elections. By law, a county cannot use a voting system or ballot marking system

until and unless it is certified or conditionally approved by the Secretary. The Secretary

bears legal responsibility for reviewing and deciding applications for certification, issuing

public reports regarding its certification decisions, and promulgating regulations governing

the use of approved systems. The Secretary adopts and publishes testing standards for

voting and ballot marking systems and also evaluates and certifies ballot card finishers and

ballot card manufacturers. In selecting voting systems and ballot marking systems for use

in their jurisdictions, California counties are restricted to systems that the Secretary has

certified or conditionally approved. Counties may purchase ballot cards only from vendors

and manufacturers that have been certified by the Secretary of State, and only in quantities

expressly approved by the Secretary of State.

35. The Secretary’s involvement with the administration of public elections in

California is pervasive. For example, the Secretary prints and distributes posters setting

forth voters’ rights for use by county election officials. The Secretary determines the

5 See Governor’s Veto Message, Assembly Bill 1681, Sept. 30, 2010,

ftp://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_1651-1700/ab_1681_vt_20100930.html

(“While I appreciate the author’s inclusion of additional polling places in this year’s

measure, I remain concerned that with limited options to vote in-person citizens—

especially poor, elderly, and disabled voters—would not have sufficient opportunity to

vote.”).


ftp://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_1651-1700/ab_1681_vt_20100930.html

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languages in which election materials should be posted at polling places in the counties.

The Secretary trains county elections officials regarding their voter registration duties and

possesses authority to make grants to local elections officials in order to enhance voter

outreach and education. The Secretary of State assesses the proposed designations of

candidates on ballot cards, including absentee ballot cards, for all public elections in

California. The Secretary directs the printing of ballot pamphlets and their distribution to

county elections officials.

36. The County relies on assistance from the Secretary in administering public

elections. Since 2011, the Secretary directly has funded the County’s election programs

through annual grants intended to expand voting access for individuals with disabilities.

Between 2011 and 2014, the Secretary of State granted San Mateo County over $300,000

for efforts to improve the accessibility of elections in the County.

37. The County relies on significant assistance, involvement, oversight, and

direction of the Secretary in administering public elections. Consequently, the Secretary

has aided and perpetuated discrimination against blind and visually impaired voters by

facilitating, directing, funding, and assisting in the administration of elections in the

County.

38. Moreover, the Secretary is critical to the implementation of a remedy to the

systemic discrimination at issue in this case, as the Secretary must certify a ballot marking

system, such as the one adopted in Oregon, before it can be used by any California county.

Therefore, in addition to bearing direct liability, the Secretary is a required party in this

action pursuant to Federal Rule of Civil Procedure 19(a)(1) because in his absence, the

court cannot accord complete relief.

FIRST CLAIM FOR RELIEF

(Violation of Title II of the Americans with Disabilities Act 42 U.S.C. § 12132 et seq.)

39. Plaintiffs reallege and incorporate herein by reference each and every

allegation set forth in paragraphs 1-39.

40. The Americans with Disabilities Act, 42 U.S.C.§ 12101 et seq., guarantees


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equal access for qualified individuals to the benefits of the services, programs, and

activities of public entities. 42 U.S.C. § 12132.

41. Title II of the ADA mandates that no qualified individual with a disability

shall, by reason of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be subject to

discrimination by any such entity. 42 U.S.C. § 12132.

42. In providing aids, benefits, or services, public entities may not provide a

qualified individual with a disability an opportunity to participate in or benefit from the

aid, benefit, or service that is not equal to that afforded others. 28 C.F.R.

§ 35.130(b)(1)(ii).

43. In addition, in providing aids, benefits, or services, public entities may not

provide a qualified individual with a disability “an aid, benefit, or service that is not as

effective in affording equal opportunity” to gain the same result or benefit as provided to

others. 28 C.F.R. § 35.130(b)(1)(iii).

44. Furthermore, when providing an aid, benefit, or service, a public entity shall

not aid or perpetuate discrimination against a qualified individual with a disability by

providing significant assistance to an agency, organization, or person that discriminates on

the basis of disability in providing any aid, benefit, or service to beneficiaries of the public

entity’s program. 28 C.F.R. § 35.130(b)(1)(v).

45. Public entities must also ensure that communications with individuals with

disabilities are as effective as communications with others. 28 C.F.R. § 35.160(a). To

satisfy this requirement, public entities must “furnish appropriate auxiliary aids and

services where necessary to afford individuals with disabilities, including applicants,

participants, companions, and members of the public, an equal opportunity to participate in

and enjoy the benefits of, a service, program, or activity of a public entity.” 28 C.F.R.

§ 35.160(b)(1).

46. Public entities may not use methods of administration that have the effect of

subjecting qualified individuals with disabilities to discrimination on the basis of disability.


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28 C.F.R. § 35.130(b)(3)(i). Additionally, public entities may not utilize methods of

administration that have the purpose or effect of defeating or substantially impairing

accomplishment of the objectives of the public entity’s program with respect to individuals

with disabilities. 28 C.F.R. § 35.130(b)(3)(ii).

47. Furthermore, a public entity may not use criteria or methods of

administration that perpetuate the discrimination of another public entity if both public

entities are agencies of the same state. 28 C.F.R. § 35.130(b)(3)(iii).

48. Public entities must “make reasonable modifications in policies, practices, or

procedures when the modifications are necessary to avoid discrimination on the basis of

disability, unless the public entity can demonstrate that making the modifications would

fundamentally alter the nature of the service, program, or activity.” 28 C.F.R.

§ 35.130(b)(7).

49. Each and every Defendant is a public entity within the meaning of Title II of

the ADA.

50. Absentee voting is a program, service, or activity provided by Defendants

within the meaning of the ADA and its implementing regulations.

51. Lynda Johnson and James Gump are individuals with disabilities under the

ADA. CCB’s blind and visually impaired members are individuals with disabilities under

the ADA.

52. Ms. Johnson and other CCB members in San Mateo County are registered to

vote and are therefore qualified individuals with disabilities entitled to the protections of

the ADA. Mr. Gump is registered to vote in San Mateo County and is therefore a qualified

individual with a disability entitled to the protections of the ADA.

53. CCB sues on behalf of its members in San Mateo County who are denied full

and equal access to the program, service, or activity of absentee voting.

54. Defendants have failed and continue to fail to meet their obligations to

provide voters who are blind or visually impaired with an opportunity to vote that is equal

to the opportunity provided to other voters. Although methods exist elsewhere that would


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enable blind voters to privately and independently mark and cast absentee ballots,

Defendants have refused to provide any such voting methods to blind voters in San Mateo

County. In refusing to provide such accessible absentee voting options, Defendants have

refused to provide an auxiliary aid or service that would allow Ms. Johnson, Mr. Gump,

and CCB’s membership to vote equally. Defendants have thus failed to take appropriate

steps to ensure that communications with Plaintiffs are as effective as communications

with others in violation of 28 C.F.R. § 35.160(a).

55. Because Defendants have failed to provide Plaintiffs and other blind voters

with a method to privately and independently read and mark absentee ballots, Defendants

have also violated 28 C.F.R. § 35.130(b)(1)(ii) by failing to provide Plaintiffs and other

voters with vision disabilities with an equal opportunity to benefit from the aid, benefit, or

service of absentee voting. They also have violated 28 C.F.R. § 35.130(b)(1)(iii) by failing

to provide Plaintiffs with an equal opportunity to achieve the same result or benefit in the

aid, benefit, or service of absentee voting.

56. In addition, the Secretary provides significant financial assistance and other

support with administering elections to the County and its Chief Elections Officer while

the Secretary has failed to certify a voting method that enables blind and visually impaired

voters to read and mark absentee ballots privately and independently. In providing the

program, service, or activity of elections, the Secretary consequently has and continues to

aid and perpetuate the County and its Chief Elections Officer’s discrimination against

Plaintiffs and other blind and visually impaired voters in violation of 28 C.F.R.

§ 35.130(b)(1)(v) by providing significant assistance to the County and its Chief Elections

Officer, which discriminate on the basis of disability in the provision of absentee voting.

57. Furthermore, the Governor and the State of California authorized the County

to conduct all-mailed ballot elections, authorized the County to reduce the number of poll

sites available during elections, and provide other assistance in administering the County’s

elections, but the Governor and the State have failed to authorize a method by which blind

voters can read and mark absentee ballots privately and independently. Thus, in providing


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the program, service, or activity of absentee voting, the Governor and the State of

California have and continue to aid and perpetuate discrimination against qualified

individuals with disabilities in violation of 28 C.F.R. § 35.130(b)(1)(v) by providing

significant assistance to the County and its Chief Elections Officer, which discriminate

against Plaintiffs on the basis of disability in their provision of absentee voting.

58. Moreover, by administering absentee voting using exclusively printed paper

ballots and by failing to provide available methods of voting that would enable blind and

visually impaired voters to read and mark absentee ballots privately and independently,

Defendants are utilizing methods of administration that have the effect of subjecting

Plaintiffs and other voters with vision disabilities to discrimination in violation of 28

C.F.R. § 35.130(b)(3)(i), and that have the effect of defeating or substantially impairing

accomplishment of the objectives of Defendants’ voting program with respect to Plaintiffs

and other voters with vision disabilities in violation of 28 C.F.R. § 35.130(b)(3)(ii).

59. By refusing to certify or otherwise authorize a voting method that would

enable blind voters to read and mark absentee ballots privately and independently, the

Secretary, the Governor, and the State of California are also using methods of

administering elections that perpetuate the discrimination committed by the County and its

Chief Elections Officer against Plaintiffs and other voters with vision disabilities in

violation of 28 C.F.R. § 35.130(b)(3)(iii).

60. Defendants have also failed to make reasonable modifications in their

program, service, or activity of absentee voting in violation of 28 C.F.R. § 35.130(b)(7) by

failing to provide Plaintiffs and other blind voters with a method to read and mark absentee

ballots privately and independently.

Accordingly, Defendants have excluded and continue to exclude Ms. Johnson, Mr. Gump,

and CCB’s membership from participation in, and denied them the benefits of or otherwise

discriminated against them in, Defendants’ service, program, or activity of absentee voting

in violation of the ADA.

WHEREFORE, Plaintiffs seek relief as set forth below.


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SECOND CLAIM FOR RELIEF (violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794)

(Against All Defendants)



62. Section 504 of the Rehabilitation Act mandates that “[n]o otherwise qualified

individual with a disability … shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be subjected to discrimination under

any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

63. Section 504 defines “program or activity,” in relevant part, as “all of the

operations of a department, agency, special purpose district, or other instrumentality of a

State or of a local government; or the entity of such State or local government that

distributes such assistance and each such department or agency (and each other State or

local government entity) to which the assistance is extended, in the case of assistance to a

State or local government.” 29 U.S.C. § 794(b)(1).

64. Federally funded programs and activities may not, in providing aids,

benefits, or services, “afford a qualified handicapped person an opportunity to participate

in or benefit from the aid, benefit, or service that is not equal to that afforded others,” nor

may such programs and activities provide qualified handicapped persons with “an aid,

benefit, or service that is not as effective as that provided to others.” 45 C.F.R.

§ 84.4(b)(l)(ii)-(iii).

65. In addition, federally funded programs and activities may not, in providing

aids, benefits, or services, aid or perpetuate discrimination against a qualified handicapped

person by providing significant assistance to an agency, organization, or person that

discriminates on the basis of handicap in providing any aid, benefit, or service to

beneficiaries of the recipients program or activity. 45 C.F.R. § 84.4(b)(1)(v).

66. The County is a public entity. The Chief Elections Officer is an elected

agent of the County who is responsible for administering elections in the County. The

Secretary of State is the elected executive of the Secretary of State’s office, which is a


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public entity. The Governor is an elected agent of the State of California. The State of

California is a government entity.

67. Defendants receive federal financial assistance, including financial assistance

from the U.S. Department of Health and Human Services.

68. Absentee voting is a program or activity provided by Defendants.

69. Ms. Johnson, Mr. Gump, and CCB’s blind and visually impaired members

are individuals with disabilities under Section 504.

70. Ms. Johnson, Mr. Gump, and other blind and visually impaired members of

CCB are registered to vote in the County and are therefore qualified individuals with

disabilities entitled to the protections of Section 504.

71. Defendants have failed and are failing to meet their obligations to provide

voters who are blind or visually impaired with an opportunity to vote that is equal to the

opportunity provided to other voters. By failing to provide a method of voting that allows

blind and visually impaired voters to read and mark absentee ballots privately and

independently, Defendants have refused to provide an auxiliary aid or service that would

allow Ms. Johnson, Mr. Gump, and CCB’s membership to vote absentee equally.

Defendants have thus excluded and continued to exclude Ms. Johnson, Mr. Gump, and

CCB’s membership from participation in, and denied them the benefits of or otherwise

discriminated against them in, their program or activity of voting.

72. In addition, the Secretary has provided the County with financial and other

assistance with administration of its elections, but has failed to certify a method of voting

that would allow Plaintiffs and other blind and visually impaired voters to cast absentee

ballots privately and independently. In providing the aid, benefit, or service of elections,

the Secretary has thus aided and perpetuated discrimination against qualified individuals

with disabilities by providing significant assistance to the County, which discriminates

against Plaintiffs on the basis of disability in its provision of the aid, benefit, or service of

absentee voting.

73. Furthermore, the Governor and the State of California authorized the County


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to conduct all vote by mail elections, authorized the County to reduce the number of poll

sites available during elections, and provided other assistance administering the County’s

elections while failing to authorize a method by which blind and visually impaired voters

can read and mark absentee ballots privately and independently. In providing the aid,

benefit, or service of absentee voting, the Governor and the State of California have thus

aided and perpetuated discrimination against qualified individuals with disabilities by

providing significant assistance to the County, which discriminates against Plaintiffs on the

basis of disability in its provision of the aid, benefit, or service of absentee voting.

Defendants have thus excluded and continue to exclude Ms. Johnson, Mr. Gump, and

CCB’s membership from participation in, and denied them the benefits of or otherwise

discriminated against them in, Defendants’ program or activity of absentee voting in

violation of Section 504 of the Rehabilitation Act.


THIRD CLAIM FOR RELIEF (violation of California Government Code § 11135, Et. Seq. against Mark Church in his official capacity as Chief Elections Officer and Assessor-County Clerk-Recorder

for the County of San Mateo, the County of San Mateo, and Alex Padilla in his official capacity as Secretary of State of California)



75. California Government Code § 11135 and the regulations promulgated

thereunder prohibit discrimination against persons with disabilities by any program or

activity that receives financial assistance from the state.

76. The Secretary, the County, and the Chief Elections Officer receive financial

assistance from the State of California to support the program and activity of absentee

voting in San Mateo County.

77. By denying Plaintiffs full and equal access to the program and activity of

absentee voting in San Mateo County, the Secretary, the County, and the Chief Elections

Officer have denied Plaintiffs the benefits of, or unlawfully subjected them to

discrimination in, the program and activity of absentee voting solely because of their


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disabilities in violation of Government Code section 11135 and the regulations

promulgated thereunder.


NEED FOR EQUITABLE RELIEF

78. Defendants’ failure to provide voters who are blind or visually impaired with

an equal opportunity to vote constitutes an ongoing and continuous violation of the ADA

and its implementing regulations, as well as Section 504 of the Rehabilitation Act and its

implementing regulations. The County, the Chief Elections Officer, and the Secretary’s

failure to provide voters who are blind or visually impaired with an equal opportunity to

vote also constitutes an ongoing and continuous violation of California Government Code

section 11135. Defendants will continue to violate the ADA, Section 504 of the

Rehabilitation Act, and Government Code section 11135 in this manner unless restrained

from doing so. Unless enjoined, Defendants’ conduct will continue to inflict injuries for

which Plaintiffs have no adequate remedy at law.

79. As a proximate result of Defendants’ violations of the ADA, the

Rehabilitation Act, and Government Code section 11135, Ms. Johnson, other CCB

members, and Mr. Gump have suffered and will continue to suffer irreparable harm. They

have suffered and continue to suffer from discrimination and unequal access to

Defendants’ program, service, or activity of absentee voting. If there is no change in the

status quo, Ms. Johnson, Mr. Gump, and CCB’s membership in San Mateo County will be

denied their right to vote privately, independently, and as effectively as others in the June

7, 2016 election and in future elections.

80. Plaintiffs have no adequate remedy at law. Unless the requested relief is

granted, Ms. Johnson, Mr. Gump, and CCB’s membership will suffer irreparable harm in

that they will be discriminated against and denied equal access to the fundamental right to

vote.

81. The ADA, the Rehabilitation Act, and the California Government Code

authorize injunctive relief to remedy acts of discrimination against persons with


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disabilities. 42 U.S.C. § 12188(a)(1); 29 U.S.C. § 794a; Cal. Gov’t Code § 11139.


PRAYER FOR RELIEF

WHEREFORE Plaintiffs THE CALIFORNIA COUNCIL OF THE BLIND,

LYNDA JOHNSON, and JAMES GUMP pray for judgment against Defendants

COUNTY OF SAN MATEO, MARK CHURCH in his official capacity as Chief Elections

Officer and Assessor-County Clerk-Recorder for San Mateo County, the STATE OF

CALIFORNIA, EDMUND G. BROWN JR. in his official capacity as Governor of

California, and ALEX PADILLA in his official capacity as Secretary of State of

California, as follows:

1. A declaration that Defendants’ failure to ensure that blind and visually

impaired voters in the County of San Mateo have access to a method to read and mark

absentee ballots privately and independently violates the Americans with Disabilities Act,

Section 504 of the Rehabilitation Act of 1973, and California Government Code section

11135.

2. An order and judgment enjoining Defendants from violating the Americans

with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and California

Government Code section 11135, and requiring Defendants to take all steps necessary to

ensure that blind and visually impaired voters have access to a method to read and mark

absentee ballots privately and independently in San Mateo County.

3. Plaintiffs’ costs of suit and reasonable attorneys’ fees under the Americans

with Disabilities Act, 42 U.S.C. § 12205, the Rehabilitation Act of 1973, 29 U.S.C. § 794a,

California Code of Civil Procedure § 1021.5, and other applicable law.

/ / /

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/ / /

/ / /


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4. Such other and further relief as this Court may deem just and proper.

DATED: December 17, 2015 Respectfully submitted,

ROSEN BIEN GALVAN & GRUNFELD LLP

By: /s/ Lisa Ells

Lisa Ells

Attorneys for Plaintiffs


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